Immediate Termination of Employment for Entering the Workplace Under the Influence of Alcohol

As the commentary observes, "(i)n practice it is far more common for an employer to terminate employment immediately where the employee has breached a duty arising from legislation relating to the work performed in a particularly gross manner. The Labour Code (as in the case of a serious breach, or repeated less serious breaches, of duties arising from legislation relating to the work performed under Section 52(g) thereof) does not define this concept in terms of its intensity. It is therefore necessary to proceed from the specific breach of the duty arising from legislation relating to the work performed by the employee, the duration of that breach and the overall situation, having regard to the person of the employee.1)"

Section 106(4)(e) of the Labour Code provides that: "An employee is obliged not to consume alcoholic beverages and not to misuse other addictive substances at the employer's workplaces and during working hours even outside those workplaces, not to enter the employer's workplaces under their influence, and not to smoke at workplaces and in other premises where non-smokers are also exposed to the effects of smoking. The prohibition on consuming alcoholic beverages does not apply to employees who work in adverse microclimatic conditions, where they drink beer with a reduced alcohol content, or to employees for whom the consumption of such beverages forms part of the performance of their work tasks or is customarily connected with it."

Let us again set aside occupations such as taster, sommelier or brewmaster, in which the consumption of alcohol is assumed. Let us likewise set aside the option available to employees in "hot" operations, such as mines and ironworks, of drinking low-strength beer, where the question arises whether this practice remains current or is rather a historical relic preserved in the Labour Code.

The case law holds that: "A state in which an employee enters the employer's workplace under the influence of an alcoholic beverage within the meaning of Section 106(4)(e) of the Labour Code need not arise from the mere consumption of an alcoholic beverage; the beverage must have been consumed to such an extent that it affects the employee's mental functions and overall alertness.2)"

"In assessing the intensity of this breach of legal duties - unlike the defendant, which terminated the claimant's employment on the basis of a policy of so-called zero tolerance of alcohol - (the court) emphasised that 'the assessment of the intensity of such a breach of work duties always depends on the specific circumstances of the case'. It therefore weighed not only the positive finding as such, but also the values recorded, among them the fact that before the start of the shift itself the reading was 0.23 per mille, that is, 'a value close to the level of 0.2 per mille, which is regarded as inconclusive given the possibility of laboratory error, or the so-called physiological level'3).

In some positions an employee may therefore, in the spirit of the above decision of the Nejvyšší soud (Supreme Court of the Czech Republic), drink a small quantity of alcohol before arriving at work relatively safely - a quantity that does not place them "under the influence" - without fearing more serious sanctions. Turning by analogy to the methodology applied by the police when testing drivers' breath during roadside checks, a reading below 0.25 per mille is treated as negative under that methodology, unless it is established by other means that alcohol was consumed before the drive.

The police methodology naturally does not apply to employment relationships. It could nonetheless serve as a supporting aid in assessing whether an employee is under the influence, particularly in the light of the decision cited above, in which the court likewise "helped itself" to a similar threshold (0.2) in reasoning its decision.

Applying the same approach by analogy, the practice of criminal law could serve as a further aid in determining the intensity of a breach of duties relating to the work performed by the employee.

"According to the findings of medical science, no driver of a motor vehicle, however well disposed, is capable of driving safely once the level of alcohol in their blood reaches at least 1.00 g/kg (1 per mille). In cases where a driver was found to have less than 1 per mille of alcohol in their blood at the time of driving, it must always be proved that their ability to drive was in fact impaired to the extent contemplated by Section 274. That conclusion cannot be drawn from the mere fact that the drive was made in conditions placing increased demands on the driver's abilities. Evidence of the degree to which the accused was affected by alcohol and of the impairment of their driving ability may include, for example, the testimony of passengers, police officers and the doctors who carried out the clinical examination, as well as testimony as to the conduct of the accused and, where applicable, the manner of their driving.4)"

A ruling of the Nejvyšší soud (Supreme Court) then states expressly that: "Where a driver of a motor vehicle is found to have had at least one per mille of alcohol in their blood at the time of driving, their capacity to drive a motor vehicle is thereby always excluded.5)"

Drawing on science and on settled case law, the legal literature has thus derived the threshold of one per mille of alcohol as the level excluding the capacity of drivers of motor vehicles, in which case the elements of the offence of endangerment under the influence of an addictive substance may be made out.

For completeness it should be added that: "The degree to which a driver is affected by alcohol may also be established by a breath test using the Dräger Alcotest 7510 device, since the values so measured correspond to the level of alcohol in the blood. Depending on the circumstances of the individual case, doubts may arise as to the correctness of the breath test result, in which case it becomes necessary to clarify the degree to which the driver was affected by alcohol by further means of evidence, in particular a blood or urine test.6)"

And now, finally, to the analogy itself. If criminal law has derived the threshold of one per mille of alcohol, reliably established, as the threshold of a criminal offence for drivers, it may be argued that the intensity of an employee's breach of duty could be assessed through a similar lens. That is so above all because, in the Třinecké železárny case referred to above, the court did not accept the employer's policy of zero tolerance of alcohol and examined the quantity of alcohol in the employee's breath and blood. It is therefore apparent that what will be decisive for the employer is the reading the employee registers on the breathalyser.

A further criterion will, of course, be the specific occupation. Apart from those occupations already set aside, in which consumption is presumed or permitted, occupations will need to be distinguished according to the demands they place on the employee. Turning to criminal law once more, in the case of work "(...) the safe performance of which requires sustained attention and the ability to perceive correctly and react promptly to emerging situations, where even a slight impairment of those abilities by an addictive substance gives rise to the possibility of endangering protected interests of a certain scope and intensity (endangering the life or health of people, that is, of several persons, or the possibility of substantial damage to property)7)." it may be argued that a positive reading of alcohol in the breath or blood is a ground for the immediate termination of employment. Logically, this will concern above all professional drivers, employees operating heavy machinery and employees working on construction sites. At the other end of the spectrum will presumably stand employees working in hospitality. The range of possible occupations is, however, so wide that individual sectors cannot be treated in a blanket manner.

Entering the workplace under the influence of alcohol may therefore be a ground for the immediate termination of an employee's employment. In each individual case it will nevertheless be necessary to assess the type of work performed, the level of alcohol measured in the breath or blood and, finally, the person of the employee as such, that is, their performance to date with the employer.

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1) Hloušková Pavla, Košnar Michael, Roučková Dana, Schmied Zdeněk, Schweiner Petr, Tomandlová Ludmila and Vácha Jan, Zákoník práce, prováděcí nařízení vlády a další související předpisy s komentářem k 1. 1. 2023, ANAG, 01.01.2023 [cit. 24.10.2023], taken from CODEXIS®, supplement LIBERIS®
2) Judgment of the Nejvyšší soud (Supreme Court) of 19 December 2016, file no. 21 Cdo 4733/2015
3) Judgment of the Nejvyšší soud (Supreme Court) of 19 December 2016, file no. 21 Cdo 4733/2015
4) ŠÁMAL, Pavel, ŠÁMALOVÁ, Milada, GŘIVNA, Tomáš. § 274 [Ohrožení pod vlivem návykové látky]. In: ŠÁMAL, Pavel et al. Trestní zákoník. 3rd edition. Prague: C. H. Beck, 2023, p. 3625, marg. no. 4.
5) Ruling of the Nejvyšší soud (Supreme Court) of 22 August 2007, file no. 5 Tdo 874/2007
6) ŠÁMAL, Pavel, ŠÁMALOVÁ, Milada, GŘIVNA, Tomáš. § 274 [Ohrožení pod vlivem návykové látky]. In: ŠÁMAL, Pavel et al. Trestní zákoník. 3rd edition. Prague: C. H. Beck, 2023, p. 3625, marg. no. 4.
7) ŠÁMAL, Pavel, ŠÁMALOVÁ, Milada, GŘIVNA, Tomáš. § 274 [Ohrožení pod vlivem návykové látky]. In: ŠÁMAL, Pavel et al. Trestní zákoník. 3rd edition. Prague: C. H. Beck, 2023, p. 3627, marg. no. 5.